Citation Nr: 0604044
Decision Date: 02/10/06 Archive Date: 02/22/06
DOCKET NO. 92-23 897 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to an increased rating for a left knee
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Simone C. Krembs, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1964 to
December 1967.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 1991 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Roanoke,
Virginia, that granted service connection and awarded a 10
percent disability rating for a left knee disability. In
April 1995, the Board remanded the claim for additional
development. The appeal regarding entitlement to service
connection for PTSD comes before the Board from a January
1996 rating decision of the Roanoke RO, that denied the
veteran's claim for service connection. In February 1998,
the veteran relocated to North Carolina, and his case was
transferred to the RO in Winston-Salem, North Carolina. In
December 2000, the Board remanded both the claim for an
increased rating for a left knee disability and the claim for
service connection for PTSD for additional development. The
veteran subsequently relocated to Florida, and his case was
transferred to the St. Petersburg, Florida, RO. The Board
again remanded the claims in August 2004. The case is now
before the Board for appellate consideration.
FINDINGS OF FACT
1. All requisite notices and assistance to the veteran have
been provided, and all evidence necessary for adjudication of
the claims has been obtained.
2. The veteran does not have a current diagnosis of PTSD,
nor has any PTSD been related to his active service.
3. For the periods from March 27, 1991 to November 11, 1991,
and from January 1, 1992 to April 2, 1992, the veteran's left
knee disability was manifested by slight limitation of
motion, moderate instability, and moderate degenerative
arthritis.
4. For the periods from June 1, 1993 to September 16, 1998,
December 1, 1998 to May 24, 1991, July 1, 2000 to May 4,
2004, and from July 1, 2005 to the present, the veteran's
left knee disability has been manifested by extension to 0
degrees, flexion limited to no more than 90 degrees, slight
instability, minimal crepitation, and subjective complaints
of pain, and stiffness. There has been no clinical evidence
of ankylosis, subluxation, dislocation, locking, or loosening
of the prosthetic knee joint.
CONCLUSIONS OF LAW
1. Claimed PTSD was not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§
3.303, 3.304 (2004).
2. The criteria for a 10 percent rating for a left knee
disability have been met, based upon arthritis with minimal
limitation of motion, from March 27, 1991 to April 2, 1991,
with the exception of the period from November 12, 1991 to
December 31, 1991 for which a temporary total rating was in
effect. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003,
5010, 5257, 5260, 5261 (2005).
3. For the period from March 27, 1991 to November 11, 1991,
the criteria for a rating in excess of 20 percent for a left
knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.17a, DC 5010, 5055, 5256, 5257,
5258, 5259, 5260, 5261, 5262 (2005).
4. For the period from November 12, 1991 to December 31,
1991, the veteran's left knee disability was assigned a 100
percent schedular rating (for convalescence following
surgery), pursuant to 38 C.F.R. § 4.30 (2005). The criteria
for an evaluation in excess of 100 percent for this period
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.304, 4.71a, DC 5055.
5. For the period from January 1, 1992 to April 2, 1992, the
criteria for a rating in excess of 20 percent for a left knee
disability have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.17a, Diagnostic Codes (DCs) 5010,
5055, 5256, 5257, 5258, 5259, 5260, 5261, 5262 (2005).
6. For the period from April 3, 1992 to May 31, 1993, the
veteran's left knee disability was assigned a 100 percent
schedular rating (for total left knee arthroplasty), pursuant
to 38 C.F.R. § 4.71a, DC 5055 (2005). The criteria for an
evaluation in excess of 100 percent for this period have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.304, 4.71a, DC 5055.
7. For the period from June 1, 1993 to September 16, 1998,
the criteria for a rating in excess of 30 percent for a left
knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.17a, Diagnostic Codes (DCs) 5010,
5055, 5256, 5257, 5258, 5259, 5260, 5261, 5262 (2005).
8. For the period from September 17, 1998 to November 30,
1998, the veteran's left knee disability was assigned a 100
percent schedular rating (for convalescence following
surgery), pursuant to 38 C.F.R. § 4.30 (2005). The criteria
for an evaluation in excess of 100 percent for this period
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.304, 4.71a, DC 5055.
9. For the period from December 1, 1998 to May 24, 1999, the
criteria for a rating in excess of 30 percent for a left knee
disability have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.17a, Diagnostic Codes (DCs) 5010,
5055, 5256, 5257, 5258, 5259, 5260, 5261, 5262 (2005).
10. For the period from May 25, 1999 to June 30, 2000, the
veteran's left knee disability was assigned a 100 percent
schedular rating (for total left knee arthroplasty), pursuant
to 38 C.F.R. § 4.71a, DC 5055 (2005). The criteria for an
evaluation in excess of 100 percent for this period have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.304, 4.71a, DC 5055.
11. For the period from July 1, 2000 to May 4, 2004, the
criteria for a rating in excess of 30 percent for a left knee
disability have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.17a, Diagnostic Codes (DCs) 5010,
5055, 5256, 5257, 5258, 5259, 5260, 5261, 5262 (2005).
12. For the period from May 5, 2004 to June 30, 2005, the
veteran's left knee disability was assigned a 100 percent
schedular rating (for total left knee arthroplasty), pursuant
to 38 C.F.R. § 4.71a, DC 5055 (2005). The criteria for an
evaluation in excess of 100 percent for this period have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.304, 4.71a, DC 5055.
13. Since July 1, 2005, the criteria for a rating in excess
of 30 percent for a left knee disability have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.17a,
Diagnostic Codes (DCs) 5010, 5055, 5256, 5257, 5258, 5259,
5260, 5261, 5262 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service Connection
The veteran contends that he suffers from PTSD as a result of
multiple events in which he participated or witnessed while
serving in the Vietnam War.
Service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R.
§ 3.303 (2005). For the showing of chronic disease in
service, there must be a combination of manifestations
sufficient to identify the disease entity and sufficient
observation to establish chronicity at the time.
If chronicity in service is not established, evidence of
continuity of symptoms after discharge is required to support
the claim. 38 C.F.R. § 3.303(b) (2005). Service connection
may also be granted for a disease diagnosed after discharge
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2005).
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).
Such determination is based on an analysis of all the
evidence of record and evaluation of its credibility and
probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a) (i.e., under the criteria of DSM-IV), a link,
established by medical evidence, between current symptoms and
an in-service stressor, and credible supporting evidence that
the claimed in-service stressor occurred. 38 C.F.R. § 4.125
(2005).
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 C.F.R. § 3.304(f) (2005).
When the evidence does not establish that a veteran is a
combat veteran, his assertions of service stressors are not
sufficient to establish the occurrence of such events.
Rather, his alleged service stressors must be established by
official service record or other credible supporting
evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16
Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998);
Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6
Vet. App. 283 (1994).
It is the Board's principal responsibility to assess the
credibility, and therefore the probative value of proffered
evidence of record in its whole. Owens v. Brown, 7 Vet. App.
429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed.
Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir.
1997) (and cases cited therein); Guimond v. Brown, 6 Vet.
App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161
(1993). In determining whether documents submitted by a
veteran are credible, the Board may consider internal
consistency, facial plausibility, and consistency with other
evidence submitted on behalf of the claimant. Caluza v.
Brown, 7 Vet. App. 498, 511 (1995). The Board is not
required to accept an appellant's uncorroborated account of
his active service experiences. Wood v. Derwinski, 1 Vet.
App. 190, 192 (1991).
The veteran claims that, while serving over a period of
approximately 11 months during the Vietnam War, he was
exposed to combat and non-combat stressors that support a
PTSD diagnosis.
The veteran's report of discharge lists his military
occupational specialty as radarman, and shows that he
received the National Defense Service Medal, and the Vietnam
Service Medal, awards that indicate service in Vietnam, but
do not necessarily denote combat. His service medical
records are negative for evidence of any psychiatric
disability during service; his psychiatric evaluation at
separation in November 1967 was normal.
The veteran submitted statements and testified regarding the
stresses of active duty. Primarily, he contends that his
involvement in operating landing craft during the August and
September 1965 amphibious landings codenamed "Starlite,"
and "Piranha," and other subsequent assault landings in
1967 resulted in PTSD. Other stressful events included
hearing gunfire in the vicinity of an operation in which he
was involved that concerned the recovery of a vessel grounded
on a sandbar in a Vietnam river, and when a fellow soldier
was crushed between the landing craft the veteran was
operating and the side of the ship from which this soldier
was climbing to board the veteran's landing craft. The
veteran also claimed that seeing wounded soldiers while he
was in the hospital receiving treatment for a fractured leg
contributed to his stress.
In attempting to verify the events the veteran described, it
has been determined that the ship to which the veteran was
assigned, the USS Cabildo, participated in Operations
Starlite and Piranha. These operations involved amphibious-
heliborne assaults on Vietcong positions. It has also been
verified that the unit to which the veteran was assigned in
the latter half of 1967, Assault Craft, Division 13, operated
vessels used to land personnel and equipment during
amphibious assaults, and that it is possible that individuals
assigned to this unit came under enemy fire. The particular
events that the veteran described, or his role in any
particular action or operation, however, have not been
verified.
Even if all the claimed stressors were verified, however, the
Board finds that the medical evidence does not support a
diagnosis of PTSD and service connection is, therefore, not
warranted. As noted above, the veteran's service medical
records are negative for evidence of any psychiatric
disability during service, and his psychiatric evaluation at
separation in November 1967 was normal.
In support of his claim, the veteran directs attention to a
September 1995 VA examination, as a result of which, the
veteran was diagnosed with PTSD. At the time of examination,
the veteran reported various PTSD symptoms, including
intrusive memories or flashbacks, recurrent nightmares,
difficulty falling or staying asleep, irritability and
outbursts of anger, difficulty concentrating, hypervigilance,
and exaggerated startle response. In the report of
examination, the examiner noted that the veteran had been
involved in combat. With regard to the mental status
examination, the examiner noted that the veteran was alert
and oriented as to all spheres, and was casually dressed and
well-groomed. His thoughts were generally clear and logical,
without evidence of psychosis. His mood seemed slightly
depressed or anxious, and his affect was congruent,
especially when talking about Vietnam and current symptoms.
The diagnosis was PTSD, severe, chronic.
As noted above, the Board remanded the veteran's claim for
service connection for PTSD in December 2000. In the remand,
the Board noted that a PTSD diagnosis for rating purposes
must be based upon verified stressors only. Because there
was no indication that the examiner reviewed the veteran's
claims folder, and in this case, the veteran's specific
stressors had not been verified, the Board found that an
additional examination, taking into account the unverified
nature of the veteran's stressors, was in order. On remand,
the examiner was instructed to reconcile his or her opinion
with the September 1995 decision, if necessary.
The veteran underwent additional VA examination for PTSD in
November 2002. In his report of examination, the examiner
indicated that he reviewed the veteran's claims file. The
report of examination noted that the veteran denied
experiencing recent unwanted memories of traumatic events
from the war. The veteran reported having had one nightmare
in the previous week, that was so upsetting that he was not
able to fall back asleep, but reported that he did not have
flashbacks. The veteran reported being upset by the news if
it involved anything about war, and he would then have
flashbacks about Vietnam, but he stated that this did not
occur in the week prior to the examination. The veteran
stated that he had to expend a little effort to avoid talking
about the Vietnam War, as he worked with naval personnel, and
stated that he did not avoid people, places or activities
because they reminded him of the trauma. The veteran denied
any feelings of anhedonia, saying that he would still enjoy
dancing and riding a bicycle, if he did not otherwise suffer
from so much pain. He also denied feeling detached, saying
that many of the servicemen where he worked liked him, and
that he had five very close friends. He stated that he went
out to eat once per week, and that he dated approximately
twice per year. When questioned about a possible restricted
range of affect, the veteran reported that he is able to
experience love and happiness, indicating that he felt happy
a couple of times the previous week. He also indicated that
he felt numb one day the previous week, but stated that this
only occurred one day and it was fleeting. The veteran
indicated that he had some sense of a foreshortened future
and stated that he experienced this on a daily basis,
although he did not have any prediction about when he thought
his life might end. He reported feeling angry or irritable
at least once a day during the last week, and stated that he
coped with that by trying to suppress it. When he was unable
to suppress these feelings, he sometimes yelled, even when at
work. He denied concentration problems. He reported nearly
constant feelings of hypervigilance, but stated that he was
uncertain exactly what he was scanning for. In assessing
whether the veteran currently met the diagnostic criteria for
an assessment of PTSD, the examiner stated that the veteran
did not meet the criteria because he did not have a
sufficient number of avoidant or numbing symptoms.
In accordance with an August 2004 Board remand, the veteran's
file was reviewed in September 2004 in effort to reconcile
the September 1995 and November 2002 opinions relating to
PTSD. In so doing, the examiner noted that a diagnosis of
PTSD requires: A) exposure to a traumatic event; B) the
traumatic event is persistently experienced in one or more
ways, C) persistent avoidance of stimuli associated with the
trauma and numbing of general responsiveness is indicated by
at least three of seven symptoms; D) persistent symptoms of
increased arousal are reflected by at least two of five
symptoms; E) the duration of the disturbance must be more
than one month; and F) the disturbance causes clinically
significant distress or impairment in social, occupational,
or other important areas of functioning. The examiner then
stated that when he had evaluated the veteran in 2002, his
responses to questioning suggested that he meet the threshold
for 5 out of the 6 criteria; he did not meet the threshold
for criterion C. He endorsed two symptoms from criterion C
(efforts to avoid thoughts, feelings or conversations
associated with the trauma, and a sense of a foreshortened
future). However, an individual must have three or more
symptoms from criterion C in order to qualify for a diagnosis
of PTSD. Because the veteran only endorsed two symptoms from
criterion C, he did not qualify for a diagnosis for PTSD.
The examiner stated that the most likely explanation, as far
as a reconciliation between the 1995 and 2002 opinions, was
that symptoms associated with mental disorders change over
time. They can become either more or less severe due to a
number of factors, including quality of life, supportive
relationships, stress, medication, and psychotherapy. Here,
the examiner stated, the different diagnoses seven years
apart suggested that there had likely been some improvement
in the veteran's condition.
An evaluation of the probative value of medical opinion
evidence is based on the medical expert's personal
examination of the patient, the examiner's knowledge and
skill in analyzing the data, and the medical conclusion
reached. The credibility and weight to be attached to such
opinions are within the province of the Board as
adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71
(1993).
Greater weight may be placed on one physician's opinion over
another depending on factors such as reasoning employed by
the physicians and whether or not and the extent to which
they reviewed prior clinical records and other evidence.
Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The
probative value of a medical opinion is generally based on
the scope of the examination or review, as well as the
relative merits of the expert's qualifications and analytical
findings, and the probative weight of a medical opinion may
be reduced if the examiner fails to explain the basis for an
opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993).
Although supportive of the veteran's claim, the Board is
inclined to place less probative value on the September 1995
examination. To this end, the Board assigns greater weight
on the subsequent VA examination and opinion, undertaken to
directly address the issue on appeal. In placing greater
weight on the November 2002 examination and September 2004
opinion, the Board notes that neither of these resulted in a
diagnosis of PTSD. Further, in both, the veteran's claimed
stressors were discussed in detail and the veteran's file was
reviewed. Moreover, the September 2004 opinion acknowledged
the September 1995 diagnosis of PTSD but provided rationales
as to why a current diagnosis of PTSD was not appropriate.
Because there is no current competent diagnosis of PTSD in
the claims file, the claim must be denied. The Board has
considered the veteran's assertions, but, as a layperson
without the appropriate medical training and expertise, he is
not competent to render a probative opinion on a medical
matter, such as whether he in fact suffers from service-
related PTSD. See Bostain v. West, 11 Vet. App. 124, 127
(1998) (citing Espiritu); see also Routen v. Brown, 10 Vet.
App. 183, 186 (1997) (a layperson is generally not capable of
opining on matters requiring medical knowledge).
The Board finds that the weight of the medical evidence fails
to support a current diagnosis of PTSD. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine, particularly in light of the
fact that the results of the first VA examination support the
veteran's claim. However, because the Board finds that the
subsequent examination that did not diagnose PTSD is of more
probative value, the Board finds that the preponderance of
the evidence is against the claim for service connection, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
Increased Rating
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities. Separate
diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2005).
When rating a service-connected disability, the entire
history must be borne in mind. Schafrath v. Derwinski, 1
Vet. App. 589 (1991). Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, the present level of disability is of
primary concern. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). However, in this case the veteran timely appealed
the rating initially assigned for this disability on the
original grant of service connection. The Board must
therefore consider entitlement to "staged ratings" for
different degrees of disability in the relevant time periods,
that is, since the original grant of service connection. See
Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).
Ratings for service-connected disabilities are determined by
comparing the veteran's symptoms with criteria listed in VA's
Schedule for Rating Disabilities (hereinafter "Rating
Schedule"), which is based, as far as practically can be
determined, on average impairment in earning capacity.
Separate diagnostic codes identify the various disabilities.
See 38 C.F.R. Part 4. Where there is a question as to which
of two evaluations shall be applied, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (2005).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination upon which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like. 38 C.F.R. § 4.40 (2005).
The Court has held that the RO must analyze the evidence of
pain, weakened movement, excess fatigability, or
incoordination and determine the level of associated
functional loss in light of 38 C.F.R. § 4.40, taking into
account any part of the musculoskeletal system that becomes
painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding)
do not forbid consideration of a higher rating based on
greater limitation of motion due to pain on use, including
flare-ups. 38 C.F.R. § 4.14 (2005). The Board notes that
the guidance provided by the Court in DeLuca must be followed
in adjudicating claims where a rating under the diagnostic
codes governing limitation of motion should be considered.
However, the Board notes that the provisions of 38 C.F.R.
§ 4.40 and 38 C.F.R. § 4.45 (2005) should only be considered
in conjunction with the diagnostic codes predicated on
limitation of motion. Johnson v. Brown, 9 Vet. App. 7
(1996).
In addition, the Board notes that the intent of the rating
schedule is to recognize painful motion with joint or
periarticular pathology as productive of disability. It is
the intention to recognize actually painful, unstable, or
malaligned joints, due to healed injury, as entitled to at
least the minimum compensable rating for the joint. 38
C.F.R. § 4.59 (2005).
The standardized description of joint measurements is
provided in Plate II under 38 C.F.R. § 4.71a (2005). For VA
purposes, normal extension and flexion of the knee is from 0
to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2005).
With respect to the joints, the factors of disability reside
in reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations: (a) less movement than normal (due to
ankylosis, limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.); (b) more movement than normal (from
flail joint, resections, nonunion of fracture, relaxation of
ligaments, etc.); (c) weakened movement (due to muscle
injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); (d) excess fatigability; (e)
incoordination, impaired ability to execute skilled movements
smoothly; and (f) pain on movement, swelling, deformity or
atrophy of disuse. Instability of station, disturbance of
locomotion, interference with sitting, standing and weight-
bearing are related considerations. 38 C.F.R. § 4.45 (2005).
For the purpose of rating disability from arthritis, the knee
is considered a major joint. See 38 C.F.R. § 4.45.
Arthritis shown by X-ray studies is rated based on limitation
of motion of the affected joint. When limitation of motion
would be noncompensable under a limitation-of-motion code,
but there is at least some limitation of motion, a 10 percent
rating may be assigned for each major joint so affected. 38
C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003 (degenerative
arthritis) and 5010 (traumatic arthritis). DC 5010,
traumatic arthritis, directs that the evaluation of arthritis
be conducted under DC 5003, which states that degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
38 C.F.R. § 4.71a, DC 5010. When, however, the limitation of
motion is noncompensable under the appropriate diagnostic
codes, a rating of 10 percent may be applied to each such
major joint or group of minor joints affected by limitation
of motion. The limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion. 38 C.F.R. § 4.71a,
DC 5010. In the absence of limitation of motion, X-ray
evidence of arthritis involving two or more major joints or
two or more minor joint groups, will warrant a rating of 10
percent; in the absence of limitation of motion, X-ray
evidence of arthritis involving two or more major joint
groups with occasional incapacitating exacerbations will
warrant a 20 percent rating. The above ratings are to be
combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC
5010, Note 1.
In VAOPGCPREC 23-97, the General Counsel held that a claimant
who has arthritis and instability of the knee may be rated
separately under DC 5003 and DC 5257, and that evaluation of
a knee disability under both of these codes would not amount
to pyramiding under 38 C.F.R. § 4.14 (2005). VAOPGCPREC 23-
97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); see also
Esteban v. Brown, 6 Vet. App. 259 (1994). However, a
separate finding must be based on additional disability.
In VAOPGCPREC 9-04, the General Counsel held that separate
ratings may be assigned for limitation of flexion and
limitation of extension of the same knee. VAOPGCPREC 9-04
(Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Specifically,
where a veteran has both a limitation of flexion and a
limitation of extension of the same leg, the limitations must
be rated separately to adequately compensate for functional
loss associated with injury to the leg. Id.
The veteran has been service-connected for his left knee
disability since March 1991. At that time, he was granted a
20 percent disability rating, which he asserted was too low.
In November 1991, the veteran underwent arthroscopic surgery
on his left knee, for which he was granted a temporary 100
percent rating (for convalescence following surgery) for
approximately one month following the surgery. See 38 C.F.R.
§ 4.30 (2005). Following this period, he was assigned a 20
percent disability rating. In April 1992, the veteran
underwent a total left knee replacement surgery. Pursuant to
the regulations, a 100 percent rating was assigned for one
year following his surgery. 38 C.F.R. § 4.71a, DC 5055. The
veteran's knee was subsequently rated as 30 percent
disabling. In September 1998, the veteran again underwent
arthroscopic surgery of his left knee for which he was
granted a temporary 100 percent rating for approximately one
month following the surgery, and after which time his
disability rating was reduced to 30 percent. In May 1999,
the veteran underwent a revision of his total left knee
replacement, after which a 100 percent rating was assigned
for one year following his surgery. 38 C.F.R. § 4.71a, DC
5055. The veteran's knee was subsequently rated as 30
percent disabling. In May 2004, the veteran's left knee was
totally replaced again. Pursuant to the regulations, a 100
percent rating was assigned for one year following his
surgery. 38 C.F.R. § 4.71a, DC 5055. The veteran's left
knee disability has been rated 30 percent disabling for
status post left total knee arthroplasty since July 2001; he
continues to seek an increased rating. The Board therefore
turns to the appropriate criteria.
The veteran's knee disability was initially rated 20 percent
disabling under DC 5257 (other impairment of the knee), which
contemplates recurrent subluxation or lateral instability.
Since his first knee replacement in April 1992, his left knee
has been rated under DC 5055 (knee replacement, prosthesis).
With the exception of temporary total ratings following total
arthroplasty of the left knee, as mandated by regulation, his
knee has been rated 30 percent disabling under DC 5055.
Alternative codes for possible application are DCs 5260
(limitation of flexion of the leg), and 5261 (limitation of
extension of the leg).
Diagnostic Codes 5256 (ankylosis of the knee), 5258
(dislocation of semilunar cartilage), 5262 (impairment of the
tibia and fibula), and 5263 (genu recurvatum) are not
applicable in this instance, as the medical evidence does not
show that the veteran has any of these conditions.
A knee impairment with recurrent subluxation or lateral
instability is rated 10 percent when slight, 20 percent when
moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, DC
5257.
Replacement of either knee joint with a prosthesis warrants a
100 percent evaluation for a one-year period following
implantation of the prosthesis. This period commences at the
conclusion of the initial grant of a total rating for one
month following hospital discharge pursuant to 38 C.F.R.
§ 4.30 (2005). Thereafter, a 60 percent rating is warranted
if there are chronic residuals consisting of severely painful
motion or severe weakness in the affected extremity. With
intermediate degrees of residual weakness, pain, or
limitation of motion, the disability will be rated by analogy
to DCs 5256, 5261 or 5262. The minimum evaluation is 30
percent. 38 C.F.R. § Part 4, DC 5055.
Diagnostic Codes 5260 and 5261 contemplate limitation of leg
flexion and extension, respectively. Under DC 5260, a zero
percent rating is warranted for flexion limited to 60
degrees; a 10 percent rating is warranted for flexion limited
to 45 degrees; a 20 percent rating is warranted for flexion
limited to 30 degrees; and a 30 percent rating is warranted
for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC
5260. Under DC 5261 (limitation of extension of the leg), a
zero percent rating is warranted for extension limited to 5
degrees; a 10 percent rating is warranted for extension
limited to 10 degrees; a 20 percent rating is warranted for
extension limited to 15 degrees; a 30 percent rating is
warranted for extension limited to 20 degrees; a 40 percent
rating is warranted for extension limited to 30 degrees; and
a 50 percent rating is warranted for extension limited to 45
degrees.
The Board now turns to the various stages for consideration.
A. From March 27, 1991 to November 11, 1991
From March 27, 1991 to November 11, 1991, the veteran's left
knee disability was rated 20 percent disabling under DC 5257,
which contemplates other impairment of the knee, and
specifically, recurrent subluxation or lateral instability.
The veteran asserts that a higher rating is warranted for
this period.
On VA examination in July 1991, the veteran complained of
constant pain in his left knee. He indicated that he
regularly wore a knee brace, and was prescribed a cane for
assistance with ambulation in March 1991. Physical
examination revealed no effusion, and no crepitus. He had
extension to 0 degrees, and flexion to 110 degrees, with
pain. His ligaments were noted to be stable. X-ray
examination revealed moderate degenerative changes.
Records associated with the November 1991 arthroscopic
surgery indicate that prior to surgery, the veteran's knee
was noted to be free of effusion. Additionally, no laxity
was noted. His range of motion was from 0 to 110 degrees.
Knee impairment with recurrent subluxation or lateral
instability is rated 10 percent when slight, 20 percent when
moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, DC
5257. On examination in July 1991, the veteran's ligaments
were noted to be stable. Similarly, on examination prior to
arthroscopic debridement in November 1991, no laxity was
noted. Based upon these findings, the Board concludes that
the veteran's knee impairment for this period does not
qualify as "severe," and that he is therefore not entitled
to a rating than higher than 20 percent under DC 5257.
The Board similarly concludes that the veteran is not
entitled to a higher rating under either DC 5260 or 5261.
The range of motion of the veteran's left knee was noted to
be from 0 to 110 degrees, on examination both in July and
November 1991. Flexion ranging from 0 to 140 degrees is
considered normal for VA purposes. See 38 C.F.R. § 4.71a,
Plate II. Here the veteran is not entitled to a higher
rating for limitation of motion under DC 5260 because flexion
is not limited to 45 degrees or less. Nor is he entitled to
a higher rating under DC 5261, as extension to 0 degrees is
not compensable. See 38 C.F.R. § 4.71a, DC 5261.
The Board notes that the examiner did not specifically
address whether the veteran demonstrated additional range of
motion lost due to pain, fatigue, weakness, or lack of
endurance following repetitive use. However, the VA
examiners found no subluxation or ligamentous laxity of the
left knee, nor any tenderness or effusion. On examination in
November 1991, the veteran stated that he was able to stand
or walk for one and one half hours before having to rest.
Even if the veteran experienced occasional flare-up of his
left knee disability, the Board finds it unlikely, and there
is no evidence which suggests, that, on repetitive use, his
left knee would be restricted by pain or other factors to
only 45 degrees flexion or 10 degrees extension. Thus, even
considering the effects of pain on use, there is no probative
evidence that the left knee is limited in motion to 10
degrees extension or 45 degrees flexion, and thus the
requirements for a compensable rating are not met. 38 C.F.R.
§§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Board notes that the ranges of motion reported at each of
the above-noted examinations would be rated 0 percent if
strictly rated under DCs 5260 and 5261. The Board also notes
that the recent General Counsel Precedent Opinion, VAOPGCPREC
9-2004, does not seem to apply to the veteran's case given
that he did not meet the criteria for a compensable rating
under either DC 5260 or 5261, as the veteran's flexion was
limited to no less than 110 degrees and extension was no less
than 0 degrees. VAOPGCPREC 9-2004 (September 17, 2004).
VAOPGCPREC 9-2004 held that separate ratings could be
assigned when the criteria under DCs 5260 and 5261 were met.
Id. In the present case, there is no basis for a compensable
rating under either of DC 5260 or DC 5261.
However, in this case the veteran has been shown on X-ray to
have osteoarthritis. Specifically, arthritis was noted on X-
ray on VA examination in July 1991. Where there is
limitation of motion, but such limitation of motion is
noncompensable under the limitation of motion diagnostic
codes, X-ray confirmation of the affected joint will warrant
a 10 percent rating under DC 5003. See 38 C.F.R. § 4.71a, DC
5003. Also, under DC 5003, a 10 percent rating may apply
where limitation of motion is absent, but there is X-ray
evidence of arthritis involving two or more major joints or
involving two or more minor joint groups. Id. As noted
above, the knee is considered a major joint. In this case,
the veteran has almost full range of motion in his left knee.
However, the veteran's symptoms, including limited active
range of motion, show sufficient limitation of motion as to
invoke the aforementioned portion of DC 5003, based on very
minimal (noncompensable) limitation of motion. The Board
finds that, on this basis, the veteran is entitled to a 10
percent rating under DC 5003 from March 27, 1991, the
effective date of service connection.
In sum, the Board concludes that the veteran is not entitled
to an increased rating for his left knee disability for this
period pursuant to DC 5257, but is entitled to a separate
rating of 10 percent for his left knee disability pursuant to
DC 5010, based on the presence of arthritis and some very
minor limitation of motion, from the effective date of
service connection. The Board has considered the benefit-of-
the-doubt rule in reaching this decision. See 38 U.S.C.A.
§ 5107(b) (West 2002).
B. From November 12, 1991 to December 31, 1991
The veteran underwent arthroscopic surgery on his left knee
on November 14, 1991. The RO granted a temporary 100 percent
rating (for convalescence following surgery), effective from
November 12, 1991 to December 31, 1991. See 38 C.F.R.
§ 4.30. The 100 percent rating in effect during this period
is the maximum rating possible under all potentially
applicable rating criteria; the veteran cannot be awarded
more than 100 percent under schedular criteria at any given
time. See 38 C.F.R. § 4.71a. Therefore, the Board need not
discuss the impact of DeLuca v. Brown, 8 Vet. App. 202 (1995)
(evaluation of musculoskeletal disorders rated on the basis
of limitation of motion requires consideration of functional
losses due to pain), before finding that an increased
schedular rating for a left knee disability is not warranted.
See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
C. From January 1, 1992 to April 2, 1992
From January 1, 1992 to April 2, 1992, the veteran's left
knee disability was rated 20 percent disabling under DC 5257,
which contemplates other impairment of the knee, and
specifically, recurrent subluxation or lateral instability.
The veteran asserts that a higher rating is warranted for
this period.
The only available records for this period are dated
immediately prior to the veteran's April 1992 total knee
replacement. On examination prior to the knee replacement in
April 1992, the veteran was noted to have failed medical
management of his left knee, as he was unable to stand for
greater than one to two hours. Physical examination revealed
left knee in clinical varus, with +2 Lachman's. He had
extension to 0 degrees, and flexion to 80 degrees, with pain
on range of motion testing. Crepitus was noted to be
present.
Knee impairment with recurrent subluxation or lateral
instability is rated 10 percent when slight, 20 percent when
moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, DC
5257. On examination in April 1992, testing of the veteran's
anteriorcruciate ligament revealed Grade 2 Lachman's, which
amounts to no more than moderate instability. Based upon
this finding, the Board concludes that the veteran's knee
impairment for this period does not qualify as "severe,"
and that he is therefore not entitled to a rating than higher
than 20 percent under DC 5257.
The Board similarly concludes that the veteran is not
entitled to a higher rating under either DC 5260 or 5261.
The range of motion of the veteran's left knee was noted to
be from 0 to 80 degrees. Flexion ranging from 0 to 140
degrees is considered normal for VA purposes. See 38 C.F.R.
§ 4.71a, Plate II. Here the veteran is not entitled to a
higher rating for limitation of motion under DC 5260 because
flexion is not limited to 45 degrees or less. Nor is he
entitled to a higher rating under DC 5261, as extension to 0
degrees is not compensable. See 38 C.F.R. § 4.71a, DC 5261.
The Board notes that the examiner did not specifically
address whether the veteran demonstrated additional range of
motion lost due to pain, fatigue, weakness, or lack of
endurance following repetitive use. Even considering the
veteran's inability to stand or walk for greater than one to
two hours, however, the Board finds it unlikely, and there is
no evidence which suggests, that, on repetitive use, his left
knee would be restricted by pain or other factors to only 45
degrees flexion or 10 degrees extension. Thus, even
considering the effects of pain on use, there is no probative
evidence that the left knee is limited in motion to 10
degrees extension or 45 degrees flexion, and thus the
requirements for a compensable rating are not met. 38 C.F.R.
§§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Board notes that the ranges of motion reported at the
above-noted examination would be rated 0 percent if strictly
rated under DCs 5260 and 5261. The Board also notes that the
recent General Counsel Precedent Opinion, VAOPGCPREC 9-2004,
does not seem to apply to the veteran's case given that he
did not meet the criteria for a compensable rating under
either DC 5260 or 5261, as the veteran's flexion was limited
to no less than 80 degrees and extension was no less than 0
degrees. VAOPGCPREC 9-2004 (September 17, 2004). VAOPGCPREC
9-2004 held that separate ratings could be assigned when the
criteria under DCs 5260 and 5261 were met. Id. In the
present case, there is no basis for a compensable rating
under either of DC 5260 or DC 5261.
However, the Board finds that for this period, the veteran is
entitled to a separate 10 percent rating under DC 5003.
Specifically, arthritis was noted on X-ray on examination in
July 1991, and the admitting diagnosis before the April 1992
arthroplasty is "degenerative joint disease." Where there
is limitation of motion, but such limitation of motion is
noncompensable under the limitation of motion diagnostic
codes, X-ray confirmation of the affected joint will warrant
a 10 percent rating under DC 5003. See 38 C.F.R. § 4.71a, DC
5003. Also, under DC 5003, a 10 percent rating may apply
where limitation of motion is absent, but there is X-ray
evidence of arthritis involving two or more major joints or
involving two or more minor joint groups. Id. The knee is
considered a major joint. In this case, the veteran had
decreased range of motion in his left knee. The Board finds
that, on this basis, the veteran is entitled to a 10 percent
rating under DC 5003 throughout the period of January 1, 1992
to April 2, 1992.
In sum, the Board concludes that the veteran is not entitled
to an increased rating for his left knee disability for this
period pursuant to DC 5257, but is entitled to a separate
rating of 10 percent for his left knee disability pursuant to
DC 5010, based on the presence of arthritis and some very
minor limitation of motion, from January 1, 1992 to April 2,
1992. The Board has considered the benefit-of-the-doubt rule
in reaching this decision. See 38 U.S.C.A. § 5107(b) (West
2002).
D. From April 3, 1992 to May 31, 1993
The veteran underwent a total left knee arthroplasty on April
7, 1992. Pursuant to regulation, the RO granted a temporary
100 percent rating (for convalescence following surgery),
effective from April 3, 1992 to May 31, 1993. See 38 C.F.R.
§ 4.71a, DC 5055. The 100 percent rating in effect during
this period is the maximum rating possible under all
potentially applicable rating criteria. Specifically, DC
5055 provides that the veteran is entitled to a 100 percent
schedular rating for the first year following implantation of
a prosthesis. Id. Therefore, the Board need not discuss the
impact of DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation
of musculoskeletal disorders rated on the basis of limitation
of motion requires consideration of functional losses due to
pain), before finding that an increased schedular rating for
a left knee disability is not warranted. See Johnston v.
Brown, 10 Vet. App. 80, 85 (1997).
As the veteran has received the maximum rating allowable for
a total knee replacement for the period of time from April 3,
1992 to May 31, 1993, there is no issue in controversy with
regard to that specific time period. See AB v. Brown, 6 Vet.
App. 35 (1993).
E. From June 1, 1993 to September 16, 1998
After undergoing a total left knee arthroplasty in April
1992, the RO recharacterized the veteran's left knee
disability as "status post left total knee replacement."
The Board finds that this recharacterization was appropriate,
as it more accurately reflects the veteran's current left
knee disability.
The veteran was granted a 100 percent disability evaluation
for his left knee disability following a prosthetic
replacement of the total left knee joint, under the
provisions of 38 C.F.R. § 4.71a, DC 5055, effective from
April 3, 1992, for 13 months. Following that period, a 30
percent disability evaluation was assigned under the same
provisions. This 30 percent rating was in effect from June
1, 1993 to September 16, 1998. The veteran asserts that a
higher rating is warranted for this period.
In order to be entitled to the next-higher evaluation of 60
percent under DC 5055, the evidence must demonstrate chronic
residuals consisting of severely painful motion or severe
weakness in the affected extremity. Here, the evidence does
show postoperative residuals, but the Board finds that such
residuals do not rise to the level of severity contemplated
in the 60 percent evaluation, as will be explained below.
Regarding left knee motion, on VA examination in November
1993, the veteran had full extension, and had flexion to 90
degrees. On VA examination in April 1994, the veteran
indicated that his left knee was doing considerably better
since he had had the total knee replacement in April 1992.
Physical examination revealed extension to 0 degrees, and
flexion to 100 degrees. No pain was noted on range of motion
testing. His knee was noted to be stable to varus and valgus
stressing. Regarding weakness, his left knee strength was
shown to be 5/5. X-ray examination revealed a total knee
arthroplasty, the components of which appeared to be in good
condition, well-cemented and stable. No arthritis was shown.
There are no further treatment records relating to left knee
pain until a September 1998 pre-operative report, which
indicates that the veteran was approximately six years
status-post a total left knee replacement, and was then
complaining of pain, stiffness, and popping, conservative
treatment for which had not provided relief. The veteran was
advised to undergo arthroscopic debridement of the left knee
later that month.
While the Board acknowledges that the veteran's knee was, at
times, painful, it does not appear that the residuals of his
left knee arthroplasty during this period overall meet the
criteria of chronically severe painful motion or weakness.
At none of the above-noted examinations was the veteran noted
to have used a cane or other assistive device to ambulate,
and it was not until six years after the total arthroplasty
that there is evidence that he complained of pain.
Additionally, none of the above-listed examinations note any
deficit in strength. Accordingly, the Board finds that the
veteran's residuals can at most be classified as moderate
pain or weakness. Considering the evidence as a whole,
severe pain or weakness of the left knee is not established
here. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet.
App. 202, 206-07 (1995). Thus, based on the foregoing, the
next-higher rating of 60 percent is not warranted under DC
5055. The Board now turns to the codes contemplating
limitation of motion, Diagnostic Codes 5260 and 5261.
The veteran was shown to have full extension and flexion to
90 degrees in November 1993, and full extension and flexion
to 100 degrees in April 1994. Flexion ranging from 0 to 140
degrees is considered normal for VA purposes. See 38 C.F.R.
§ 4.71a, Plate II. The veteran is thus not entitled to a
higher rating for limitation of motion under DC 5260 because
flexion has not been shown to be limited to 45 degrees or
less. Nor is he entitled to a higher rating under DC 5261,
as extension to 0 degrees is not compensable.
The above findings demonstrate ranges of motion that consider
of the effect of pain during use and flare-ups. They
indicate minimal limitation of flexion which would be
noncompensable, and full extension. See 38 C.F.R. §§ 4.40,
4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Board notes that the ranges of motion reported above
would be rated 0 percent if strictly rated under DC 5260 and
DC 5261. The Board also notes that the recent General
Counsel Precedent Opinion, VAOGCPREC 9-04, does not seem to
apply to the veteran's case given that he did not meet the
criteria for a compensable rating under DC 5260, as flexion
was limited to no more than 90 degrees. VAOGCPREC 9-04
(Sept. 17, 2004). VAOGCPREC 9-04 held that separate ratings
could be assigned when the criteria for a compensable rating
under DCs 5260 and 5261 were met. Id. In the present case,
there is no basis for a compensable rating under DC 5260 or
5261.
Prior to his left knee replacement, the veteran in this case
had been diagnosed with arthritis, and was granted a 10
percent disability rating under DC 5010 for arthritis
resulting in limitation of flexion by this decision.
38 C.F.R. § 4,71a, DC 5010. However, in order to be eligible
for a separate rating under this diagnostic code, the veteran
must not qualify for compensation under the diagnostic codes
pertaining to limitation of motion. See 38 C.F.R. §§ 5003,
5010. The veteran here does not qualify for compensation on
the basis of limitation of motion. However, the veteran in
this case has been awarded a 30 percent disability rating
under DC 5055. Under DC 5010, a 10 percent rating is
warranted where there is X-ray evidence of arthritis
involving two or more major joints or involving two or more
minor joint groups. 38 C.F.R. §§ 5003, 5010. A 20 percent
evaluation is not warranted unless X-ray evidence shows
involvement of two or more major joints or two or more minor
joint groups with occasional incapacitating exacerbations.
The knee is considered a major joint. In this case, however,
there is no current evidence of arthritis in the left knee,
as the left knee has been replaced by a prosthesis. Even
assuming arguendo that there was arthritis in his left knee,
the Board finds that diagnostic code 5055 and the limitation
of motion codes are mutually exclusive, and that a separate
rating under DC 5010 therefore cannot be awarded. Diagnostic
Code 5055 directs that a prosthetic knee will be rated 30
percent disabling, at minimum, where there is intermediate
degrees of residual weakness, pain, or limitation of motion,
rated by analogy to DCs 5256, 5260, or 5261. The Board
interprets this language to mean that where a 60 percent
rating is not warranted under DC 5055, a prosthetic knee will
be rated 30 percent unless a higher rating is warranted under
DCs 5256, 5260, or 5261. In this case, the veteran's
limitation of motion is considered noncompensable.
Accordingly, his left knee disability is rated under DC 5055.
Because his disability is rated under DC 5055 rather than
under the limitation of motion codes, the Board finds that
even if he did have arthritis in his left knee, a 30 percent
rating under DC 5055 provides the requisite compensation for
painful motion due to arthritis and he is not entitled to a
separate 10 percent rating under DC 5010.
In sum, the Board concludes that the veteran is not entitled
to an increased rating for his left knee disability for this
period. As the preponderance of the evidence is against the
claim for an increased rating, the benefit-of-the-doubt rule
does not apply and the claim must be denied. See 38 U.S.C.A.
§ 5107(b) (West 2002); Gilbert. v. Derwinski, 1 Vet. App. 49,
54-56 (1990).
Furthermore, the Board finds that the 10 percent rating for
arthritis pursuant to DC 5010 will no longer be in effect as
of April 2, 1992, because the joint was replaced by a
prosthesis. This action is consistent with the holding of
the Court in Fenderson v. West, 12 Vet. App. 119 (1999). In
Fenderson, the Court held that when assigning "staged"
ratings, or separate ratings for separate periods of time,
during review of an initial evaluation, that the provisions
regarding reductions would not be applicable. Therefore, the
Board finds that the assignment of an additional rating for
arthritis only for a limited period of the initial rating
under consideration is procedurally proper and the provisions
regarding reductions, such as 38 C.F.R. § 3.105(e), and not
applicable.
F. From September 17, 1998 to November 30, 1998
The veteran again underwent arthroscopic surgery on his left
knee on September 17, 1998. The RO granted a temporary 100
percent rating (for convalescence following surgery),
effective from September 17, 1998 to November 30, 1998. See
38 C.F.R. § 4.30. The 100 percent rating in effect during
this period is the maximum rating possible under all
potentially applicable rating criteria; the veteran cannot be
awarded more than 100 percent under schedular criteria at any
given time. See 38 C.F.R. § 4.71a. Therefore, the Board
need not discuss the impact of DeLuca v. Brown, 8 Vet. App.
202 (1995) (evaluation of musculoskeletal disorders rated on
the basis of limitation of motion requires consideration of
functional losses due to pain), before finding that an
increased schedular rating for a left knee disability is not
warranted. See Johnston v. Brown, 10 Vet. App. 80, 85
(1997).
G. From December 1, 1998 to May 24, 1999
The veteran was granted a 100 percent disability evaluation
for his left knee disability following arthroscopic surgery,
effective from September 17, 1998, for approximately one
month. See 38 C.F.R. § 4.30. Following that period, a 30
percent disability evaluation was assigned under 38 C.F.R.
§ 4.71a, DC 5055. This 30 percent rating was in effect from
December 1, 1998 to May 24, 1999. The veteran asserts that a
higher rating is warranted for this period.
In order to be entitled to the next-higher evaluation of 60
percent under DC 5055, the evidence must demonstrate chronic
residuals consisting of severely painful motion or severe
weakness in the affected extremity. Here, the evidence does
show postoperative residuals, but the Board finds that such
residuals do not rise to the level of severity contemplated
in the 60 percent evaluation, as will be explained below.
Regarding left knee motion, the veteran was referred for
examination by VA in March 1999. At that time, the veteran
described residuals of left knee, femur and hip conditions
that consisted of pain, weakness, stiffness, swelling,
inflammation, instability and dislocation. He additionally
complained of locking, fatigue and of lack of endurance. The
Board notes that it is somewhat unclear whether the symptoms
apply equally to the knee, hip, and femur, or whether each
disability had discrete symptoms, as the report of
examination does not specify which symptoms pertained to
which disabilities. Regardless, the veteran stated that
while the pain was sometimes horrible, it only lasted until
he sat down. Flare-ups were claimed to occur with usage, and
were relieved by rest and relaxation. At the time of
examination, the veteran was noted to be using a cane and a
knee brace. Physical examination of the left knee revealed a
well-healed, non-tender scar consistent with a total knee
arthroplasty. There was no swelling, redness, effusion,
instability or weakness. Range of motion testing revealed
full extension and flexion to 110 degrees. X-ray examination
revealed degenerative arthritis of the left knee.
The next available treatment record is a May 1999 pre-
operative examination, which indicates that the veteran had
extension limited by 10 degrees, and flexion to 95 degrees.
It was determined that the veteran had a failed total left
knee replacement and he was advised to again undergo a total
arthroplasty of the left knee.
While the Board acknowledges that the veteran's knee was, at
times, painful, it does not appear that the residuals of his
left knee arthroplasty during this period overall meet the
criteria of chronically severe painful motion or weakness.
Although the veteran was noted to have used both a cane and a
knee brace on examination in March 1999, he reported relief
of pain as soon as he sat down. The Board therefore finds
that his overall disability picture has not been shown to
involve severe discomfort such as to warrant a 60 percent
evaluation. Additionally, none of the above-listed
examinations note any deficit in strength. Accordingly, the
Board finds that the veteran's residuals can at most be
classified as moderate pain or weakness. Considering the
evidence as a whole, severe pain or weakness of the left knee
is not established here. See 38 C.F.R. §§ 4.40, 4.45; DeLuca
v. Brown, 8 Vet. App. 202, 206-07 (1995). Thus, based on the
foregoing, the next-higher rating of 60 percent is not
warranted under DC 5055. The Board now turns to the codes
contemplating limitation of motion, Diagnostic Codes 5260 and
5261.
The veteran was shown to have full extension and flexion to
110 degrees in March 1999, and extension limited by 10
degrees and flexion to 95 degrees in May 1999. Flexion
ranging from 0 to 140 degrees is considered normal for VA
purposes. See 38 C.F.R. § 4.71a, Plate II. The veteran is
thus not entitled to a higher rating for limitation of motion
under DC 5260 because flexion has not been shown to be
limited to 45 degrees or less. Nor is he entitled to a
higher rating under DC 5261, as extension limited by 10
degrees is not compensable.
The above findings demonstrate ranges of motion that consider
of the effect of pain during use and flare-ups. They
indicate minimal limitation of flexion and extension which
would be noncompensable. See 38 C.F.R. §§ 4.40, 4.45, 4.59;
DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Board notes that the ranges of motion reported above
would be rated 0 percent if strictly rated under DC 5260 and
DC 5261. The Board also notes that the recent General
Counsel Precedent Opinion, VAOGCPREC 9-04, does not seem to
apply to the veteran's case given that he did not meet the
criteria for a compensable rating under DC 5260, as flexion
was limited to no more than 95 degrees. VAOGCPREC 9-04
(Sept. 17, 2004). VAOGCPREC 9-04 held that separate ratings
could be assigned when the criteria for a compensable rating
under DCs 5260 and 5261 were met. Id. In the present case,
there is no basis for a compensable rating under DC 5260 or
5261.
Prior to his left knee replacement, the veteran in this case
had been diagnosed with arthritis, and was granted a 10
percent disability rating under DC 5010 for arthritis
resulting in limitation of flexion. 38 C.F.R. § 4,71a, DC
5010. However, in order to be eligible for a separate rating
under this diagnostic code, the veteran must not qualify for
compensation under the diagnostic codes pertaining to
limitation of motion. See 38 C.F.R. §§ 5003, 5010. As
discussed above, the veteran here does not qualify for
compensation on the basis of limitation of motion. However,
the veteran in this case has been awarded a 30 percent
disability rating under DC 5055. Under DC 5010, a 10 percent
rating is warranted where there is X-ray evidence of
arthritis involving two or more major joints or involving two
or more minor joint groups. 38 C.F.R. §§ 5003, 5010. A 20
percent evaluation is not warranted unless X-ray evidence
shows involvement of two or more major joints or two or more
minor joint groups with occasional incapacitating
exacerbations. As noted above, the knee is considered a
major joint. During the time period under consideration,
there is evidence of arthritis in the left knee. However,
the Board finds that diagnostic code 5055 and the limitation
of motion codes are mutually exclusive, and that a separate
rating under DC 5010 therefore cannot be awarded. Diagnostic
Code 5055 directs that a prosthetic knee will be rated 30
percent disabling, at minimum, where there is intermediate
degrees of residual weakness, pain, or limitation of motion,
rated by analogy to DCs 5256, 5260, or 5261. The Board
interprets this language to mean that where a 60 percent
rating is not warranted under DC 5055, a prosthetic knee will
be rated 30 percent unless a higher rating is warranted under
DCs 5256, 5260, or 5261. In this case, the veteran's
limitation of motion is considered noncompensable.
Accordingly, his left knee disability is rated under DC 5055.
Because his disability is rated under DC 5055 rather than
under the limitation of motion codes, the Board finds that
even though he was noted to have arthritis in his left knee,
a 30 percent rating under DC 5055 provides the requisite
compensation for painful motion due to arthritis and he is
not entitled to a separate 10 percent rating under DC 5010.
In sum, the Board concludes that the veteran is not entitled
to an increased rating for his left knee disability for this
period. As the preponderance of the evidence is against the
claim, the benefit-of-the-doubt rule does not apply and the
claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert. v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
H. From May 25, 1999 to June 30, 2000
The veteran again underwent a total left knee arthroplasty on
May 25, 1999. Pursuant to regulation, the RO granted a
temporary 100 percent rating (for convalescence following
surgery), effective from May 25, 1999 to June 30, 2000. See
38 C.F.R. § 4.71a, DC 5055. The 100 percent rating in effect
during this period is the maximum rating possible under all
potentially applicable rating criteria. Specifically, DC
5055 provides that the veteran is entitled to a 100 percent
schedular rating for the first year following implantation of
a prosthesis. Id. Therefore, the Board need not discuss the
impact of DeLuca, supra, before finding that an increased
schedular rating for a left knee disability is not warranted.
See Johnston, supra.
As the veteran has received the maximum rating allowable for
a total knee replacement for the period of time from May 25,
1999 to June 30, 2000, there is no issue in controversy with
regard to that specific time period. See AB v. Brown, 6 Vet.
App. 35 (1993).
I. From July 1, 2000 to May 4, 2004
The veteran was granted a 100 percent disability evaluation
for his left knee disability following a prosthetic
replacement of the total left knee joint, under the
provisions of 38 C.F.R. § 4.71a, DC 5055, effective from May
25, 1999, for 13 months. Following that period, a 30 percent
disability evaluation was assigned under the same provisions.
This 30 percent rating was in effect from July 1, 2000 to May
4, 2004. The veteran asserts that a higher rating is
warranted for this period.
In order to be entitled to the next-higher evaluation of 60
percent under DC 5055, the evidence must demonstrate chronic
residuals consisting of severely painful motion or severe
weakness in the affected extremity. Here, the evidence does
show postoperative residuals, but the Board finds that such
residuals do not rise to the level of severity contemplated
in the 60 percent evaluation, as will be explained below.
Regarding left knee motion, the veteran underwent VA
examination in November 2002. At that time, the veteran
reported that prior to his May 1999 arthroplasty, he had been
employed as a property manager; a position which involved
numerous trips up and down stairs. The veteran stated that
he realized that this activity was aggravating his knee. As
a result, he accepted a new job as a manager of a naval base,
a job which required him to do less physical activity. The
veteran reported that he currently was experiencing pain in
his left knee on a daily basis. He denied experiencing any
instability. Range of motion testing revealed full extension
and flexion to 90 degrees, with pain. However, the examiner
noted that the veteran lacked any degree of hyperflexion, and
thus noted that it would be difficult for him to ascend and
descend stairs with only 90 degrees of flexion. There was no
significant instability to varus or valgus extension. There
was no pain noted on rising from a chair or during a squat
test that was performed at the examination. With regard to
knee strength, the examiner noted that the veteran had 4/5
quadricep strength, but when forced to do repetitive knee
extension against resistance, he did have severe pain, and
was unable to extend after several attempts. He had no
significant hamstring weakness. X-ray examination revealed
no evidence of loosening of the prosthesis. Possible joint
effusion was noted. No arthritis was noted.
On VA examination in June 2003, the veteran was noted to be
wearing a long leg brace on his left leg for added knee
stability. The veteran complained of pain in his leg at
night, cramps, and only being able to walk for 15 to 20
minutes at a time before having to stop. He stated that he
occasionally used a cane. He reported that he was only able
to go up one stair at a time. Range of motion testing
revealed full extension and flexion to 90 degrees, with pain.
With a five-pound weight on his ankle, the veteran's
extension was limited by 15 degrees, and he had flexion to 90
degrees. The examiner noted that the veteran had therefore
lost range of motion due to fatigue or weakness.
A VA outpatient treatment record dated in February 2004
indicates that the veteran complained of pain, but denied
swelling. Physical examination revealed mild "clunking" of
the patella with minimal effusion and no erythema. Range of
motion testing revealed full extension and flexion to 120
degrees. The examiner noted questionable medial joint line
elevation of the base plate of the prosthesis.
A pre-operative report dated in May 2004 notes that the
veteran had noted increasing pain in his left knee over the
past year, without antecedent trauma. He complained of
significant start-up pain primarily transversely across the
proximal tibia/prosthesis interface. A bone scan conducted
in March 2004 revealed nonspecific increased blood pool and
delayed activity of the right medial plateau. The impression
was pain, probably secondary to loosening of the tibial
component. The veteran was advised to undergo a revision of
his left total knee replacement later that month.
While the Board acknowledges that the veteran's knee was, at
intervals, painful, it does not appear that the residuals of
his left knee arthroplasty during this period overall meet
the criteria of chronically severe painful motion or
weakness. While the veteran experienced fatigue with
resistance on examination in November 2002 and in June 2003,
there was no pain noted upon rising from a seated position,
or during the squat test in November 2002. Additionally,
while some loss of strength was noted on examination in
November 2002, the Board finds that 4/5 quadricep strength
testing does not meet the threshold for classification as
anything more than "moderate" weakness, particularly as the
veteran was noted to have no deficit in hamstring strength.
Accordingly, the Board finds that the veteran's residuals can
at most be classified as moderate pain or weakness.
Considering the evidence as a whole, severe pain or weakness
of the left knee is not established here. See 38 C.F.R. §§
4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).
Thus, based on the foregoing, the next-higher rating of 60
percent is not warranted under DC 5055. The Board now turns
to the codes contemplating limitation of motion, Diagnostic
Codes 5260 and 5261.
The veteran was shown to have full extension and flexion to
90 degrees in both November 2002 and June 2003, and full
extension and flexion to 120 degrees in February 2004.
Flexion ranging from 0 to 140 degrees is considered normal
for VA purposes. See 38 C.F.R. § 4.71a, Plate II. The
veteran is thus not entitled to a higher rating for
limitation of motion under DC 5260 because flexion has not
been shown to be limited to 45 degrees or less. Nor is he
entitled to a higher rating under DC 5261, as extension to 0
degrees is not compensable.
The above findings demonstrate ranges of motion that consider
the effect of pain during use and flare-ups. They indicate
minimal limitation of flexion which would be noncompensable,
and full extension. See 38 C.F.R. §§ 4.40, 4.45, 4.59;
DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Board notes that the ranges of motion reported above
would be rated 0 percent if strictly rated under DC 5260 and
DC 5261. The Board also notes that the recent General
Counsel Precedent Opinion, VAOGCPREC 9-04, does not seem to
apply to the veteran's case given that he did not meet the
criteria for a compensable rating under DC 5260, as flexion
was limited to no more than 90 degrees. VAOGCPREC 9-04
(Sept. 17, 2004). VAOGCPREC 9-04 held that separate ratings
could be assigned when the criteria for a compensable rating
under DCs 5260 and 5261 were met. Id. In the present case,
there is no basis for a compensable rating under DC 5260 or
5261.
Prior to his left knee replacement, the veteran in this case
had been diagnosed with arthritis, and was granted a 10
percent disability rating under DC 5010 for arthritis
resulting in limitation of flexion. 38 C.F.R. § 4,71a, DC
5010. However, in order to be eligible for a separate rating
under this diagnostic code, the veteran must not qualify for
compensation under the diagnostic codes pertaining to
limitation of motion. See 38 C.F.R. §§ 5003, 5010. As
discussed above, the veteran here does not qualify for
compensation on the basis of limitation of motion. However,
the veteran in this case has been awarded a 30 percent
disability rating under DC 5055. Under DC 5010, a 10 percent
rating is warranted where there is X-ray evidence of
arthritis involving two or more major joints or involving two
or more minor joint groups. 38 C.F.R. §§ 5003, 5010. A 20
percent evaluation is not warranted unless X-ray evidence
shows involvement of two or more major joints or two or more
minor joint groups with occasional incapacitating
exacerbations. The knee is considered a major joint. In
this case, however, there is no current evidence of arthritis
in the left knee, as the left knee has been replaced by a
prosthesis. Even assuming arguendo that there was arthritis
in his left knee, the Board finds that diagnostic code 5055
and the limitation of motion codes are mutually exclusive,
and that a separate rating under DC 5010 therefore cannot be
awarded. Diagnostic Code 5055 directs that a prosthetic knee
will be rated 30 percent disabling, at minimum, where there
is intermediate degrees of residual weakness, pain, or
limitation of motion, rated by analogy to DCs 5256, 5260, or
5261. The Board interprets this language to mean that where
a 60 percent rating is not warranted under DC 5055, a
prosthetic knee will be rated 30 percent unless a higher
rating is warranted under DCs 5256, 5260, or 5261. In this
case, the veteran's limitation of motion is considered
noncompensable. Accordingly, his left knee disability is
rated under DC 5055. Because his disability is rated under
DC 5055 rather than under the limitation of motion codes, the
Board finds that even if he did have arthritis in his left
knee, a 30 percent rating under DC 5055 provides the
requisite compensation for painful motion due to arthritis
and he is not entitled to a separate 10 percent rating under
DC 5010.
In sum, the Board concludes that the veteran is not entitled
to an increased rating for his left knee disability for this
period. As the preponderance of the evidence is against the
claim, the benefit-of-the-doubt rule does not apply and the
claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert. v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
J. From May 5, 2004 to June 30, 2005
The veteran again underwent a total left knee arthroplasty on
May 7, 2004. Pursuant to regulation, the RO granted a
temporary 100 percent rating (for convalescence following
surgery), effective from May 5, 2004 to June 30, 2005. See
38 C.F.R. § 4.71a, DC 5055. The 100 percent rating in effect
during this period is the maximum rating possible under all
potentially applicable rating criteria. Specifically, DC
5055 provides that the veteran is entitled to a 100 percent
schedular rating for the first year following implantation of
a prosthesis. Id. Therefore, the Board need not discuss the
impact of DeLuca, supra, before finding that an increased
schedular rating for a left knee disability is not warranted.
See Johnston, supra.
As the veteran has received the maximum rating allowable for
a total knee replacement for the period of time from May 5,
2004 to June 30, 2005, there is no issue in controversy with
regard to that specific time period. See AB v. Brown, 6 Vet.
App. 35 (1993).
K. From July 1, 2005 to the Present
The veteran was granted a 100 percent disability evaluation
for his left knee disability following a prosthetic
replacement of the total left knee joint, under the
provisions of 38 C.F.R. § 4.71a, DC 5055, effective from May
5, 2004, for 13 months. Following that period, a 30 percent
disability evaluation was assigned under the same provisions.
This 30 percent rating has been in effect since July 1, 2005.
The veteran asserts that a higher rating is warranted.
In order to be entitled to the next-higher evaluation of 60
percent under DC 5055, the evidence must demonstrate chronic
residuals consisting of severely painful motion or severe
weakness in the affected extremity. Here, the evidence does
show postoperative residuals, but the Board finds that such
residuals do not rise to the level of severity contemplated
in the 60 percent evaluation, as will be explained below.
Regarding left knee motion, on VA examination in September
2005, the veteran had full extension, and had flexion to 120
degrees. Laxity of the lateral collateral ligament was
noted, however, the examiner stated that this was graded as
+1, as there was anterior and posterior stability. With
regard to strength, he was noted to have full weight-bearing
capacity, but the examiner noted that he continued to have a
lack of endurance that the veteran was working on, by
exercise. The examiner estimated that this lack of endurance
or weakness could increase his disability by approximately 10
to 15 percent. X-ray examination did not reveal arthritis,
and was otherwise unremarkable. The veteran reported that he
was currently working, and that he was mindful of his knee,
as he was aware that increased activity would result in
wearing out this prosthesis as well. The veteran reported
that his pain had markedly decreased after the May 2004 total
knee replacement.
While the Board acknowledges that the veteran's knee is still
manifested by a lack of endurance and some instability, the
Board finds that the veteran's overall disability picture has
not been shown to involve severe discomfort such as to
warrant a 60 percent evaluation. Indeed, on VA examination
in September 2005, the veteran indicated that his knee pain
had markedly decreased since the last total knee replacement.
Based upon the above, the Board finds that the veteran's
residuals can at most be classified as moderate pain or
weakness. Considering the evidence as a whole, severe pain
or weakness of the left knee is not established here. See
38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202,
206-07 (1995). Thus, based on the foregoing, the next-higher
rating of 60 percent is not warranted under DC 5055. The
Board now turns to the codes contemplating limitation of
motion, Diagnostic Codes 5260 and 5261.
The veteran was shown to have full extension and flexion to
120 degrees on VA examination in September 2005. Flexion
ranging from 0 to 140 degrees is considered normal for VA
purposes. See 38 C.F.R. § 4.71a, Plate II. The veteran is
thus not entitled to a higher rating for limitation of motion
under DC 5260 because flexion has not been shown to be
limited to 45 degrees or less. Nor is he entitled to a
higher rating under DC 5261, as extension to 0 degrees is not
compensable.
The above findings demonstrate ranges of motion that consider
of the effect of pain during use and flare-ups. They
indicate minimal limitation of flexion which would be
noncompensable, and full extension. See 38 C.F.R. §§ 4.40,
4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Board notes that the ranges of motion reported above
would be rated 0 percent if strictly rated under DC 5260 and
DC 5261. The Board also notes that the recent General
Counsel Precedent Opinion, VAOGCPREC 9-04, does not seem to
apply to the veteran's case given that he did not meet the
criteria for a compensable rating under DC 5260, as flexion
was limited to no more than 120 degrees. VAOGCPREC 9-04
(Sept. 17, 2004). VAOGCPREC 9-04 held that separate ratings
could be assigned when the criteria for a compensable rating
under DCs 5260 and 5261 were met. Id. In the present case,
there is no basis for a compensable rating under DC 5260 or
5261.
Prior to his left knee replacement, the veteran in this case
had been diagnosed with arthritis, and was granted a 10
percent disability rating under DC 5010 for arthritis
resulting in limitation of flexion. 38 C.F.R. § 4,71a, DC
5010. However, in order to be eligible for a separate rating
under this diagnostic code, the veteran must not qualify for
compensation under the diagnostic codes pertaining to
limitation of motion. See 38 C.F.R. §§ 5003, 5010. As
discussed above, the veteran here does not qualify for
compensation on the basis of limitation of motion. However,
the veteran in this case has been awarded a 30 percent
disability rating under DC 5055. Under DC 5010, a 10 percent
rating is warranted where there is X-ray evidence of
arthritis involving two or more major joints or involving two
or more minor joint groups. 38 C.F.R. §§ 5003, 5010. A 20
percent evaluation is not warranted unless X-ray evidence
shows involvement of two or more major joints or two or more
minor joint groups with occasional incapacitating
exacerbations. As noted above, the knee is considered a
major joint. In this case, however, there is no current
evidence of arthritis in the left knee, as the left knee has
been replaced by a prosthesis. Even assuming arguendo that
there was arthritis in his left knee, the Board finds that
diagnostic code 5055 and the limitation of motion codes are
mutually exclusive, and that a separate rating under DC 5010
therefore cannot be awarded. Diagnostic Code 5055 directs
that a prosthetic knee will be rated 30 percent disabling, at
minimum, where there is intermediate degrees of residual
weakness, pain, or limitation of motion, rated by analogy to
DCs 5256, 5260, or 5261. The Board interprets this language
to mean that where a 60 percent rating is not warranted under
DC 5055, a prosthetic knee will be rated 30 percent unless a
higher rating is warranted under DCs 5256, 5260, or 5261. In
this case, the veteran's limitation of motion is considered
noncompensable. Accordingly, his left knee disability is
rated under DC 5055. Because his disability is rated under
DC 5055 rather than under the limitation of motion codes, the
Board finds that even if he did have arthritis in his left
knee, a 30 percent rating under DC 5055 provides the
requisite compensation for painful motion due to arthritis
and he is not entitled to a separate 10 percent rating under
DC 5010.
In sum, the Board concludes that the veteran is not entitled
to an increased rating for his left knee disability for this
period. As the preponderance of the evidence is against the
claim, the benefit-of-the-doubt rule does not apply and the
claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002);
Gilbert. v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
The Board has also considered whether the record raises the
matter of an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) (2005), for each of the above-listed periods.
For each of the above-listed periods, the Board finds that
the evidence does not reflect that the veteran's
postoperative left knee residuals have caused marked
interference with employment (i.e., beyond that already
contemplated in the assigned evaluation), or necessitated any
frequent periods of hospitalization, such that application of
the regular schedular standards is rendered impracticable.
The Board notes that the veteran continued to work throughout
the vast majority of the time under consideration.
Additionally, the Board notes that the veteran has received a
five separate periods of temporary 100 percent ratings
following his various knee surgeries, pursuant to 38 C.F.R.
§ 4.30 and DC 5055. Based on the foregoing, The Board finds
that referral for consideration of an extra-schedular
evaluation is not warranted. 38 C.F.R. § 3.321(b)(1).
In sum, the weight of the credible evidence demonstrates that
a rating higher than 20 percent is not warranted for the
periods from March 27, 1991 to November 11, 1991, and from
January 1, 1992 to April 2, 1992. Nor is a rating higher
than 30 percent warranted for the periods from June 1, 1993
to September 16, 1998, from December 1, 1998 to May 24, 1999,
from July 1, 2000 to May 4, 2004, or from July 1, 2005 to the
present. The veteran's currently assigned 30 percent
evaluation under DC 5055 represents the highest allowable
award based on the evidence of record. However, the Board
finds that the veteran is entitled to a separate rating of 10
percent for his left knee disability, based on the presence
of arthritis and some very minor limitation of motion, from
March 27, 1991 to November 11, 1991, and from January 1, 1992
to April 2, 1992. The Board has considered the benefit-of-
the-doubt rule in reaching this decision. See 38 U.S.C.A.
§ 5107(b) (West 2002).
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159
(2005). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
In this case, the RO sent correspondence in November 2001,
August 2004, December 2004, and September 2005; rating
decisions in May and June 1991, in January, March and July of
1992, September 1994, January 1996, July 1999, and January
2005; a statement of the case in December 1991 and April
1996; and supplemental statements of the case in February
1992, December 1994, September 1996, June and July of 1999,
February 2004, and September 2005. These documents discussed
specific evidence, the particular legal requirements
applicable to the claims, the evidence considered, the
pertinent laws and regulations, and the reasons for the
decisions. VA made all efforts to notify and to assist the
appellant with regard to the evidence obtained, the evidence
needed, the responsibilities of the parties in obtaining the
evidence, and the general notice of the need for any evidence
in the appellant's possession. The Board finds that any
defect with regard to the timing or content of the notice to
the appellant is harmless because of the thorough and
informative notices provided throughout the adjudication and
because the appellant had a meaningful opportunity to
participate effectively in the processing of the claim with
an adjudication of that claim by the RO subsequent to receipt
of the required notice. See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005). Thus, VA has satisfied its duty to notify
the appellant.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the veteran of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant evidence.
VA has also obtained multiple examinations. Thus, the Board
finds that VA has satisfied both the notice and duty to
assist provisions of the law.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for PTSD is denied.
An additional 10 percent rating for arthritis in the left
knee pursuant to Diagnostic Code 5010 is granted, for the
period from March 27, 1991 to November 11, 1991, and from
January 1, 1992 to April 2, 1992.
An increased rating for a left knee disability, for the
period from March 27, 1991 to November 11, 1991, is denied.
An increased rating for a left knee disability, for the
period from January 1, 1992 to April 2, 1992, is denied.
An increased rating for a left knee disability, for the
period from June 1, 1993 to September 16, 1998, is denied.
An increased rating for a left knee disability, for the
period from December 1, 1998 to May 24, 1999, is denied.
An increased rating for a left knee disability, for the
period from July 1, 2000 to May 4, 2004, is denied.
An increased rating for a left knee disability, for the
period from July 1, 2005 to the present, is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs